Judicial Clemency: A Second Chance After Probation

Judicial Clemency: A Second Chance After Probation

By: Jason L. Van Dyke, Esq.

Before reading this article, please read my last article entitled Life After Sentencing: Early Release from Probation and Deferred Adjudication in Texas. This article contains important information about a number of post-sentencing options available to those who are currently serving some form of Texas probation, and the material discussed there is essential to understanding the judicial clemency process that is the focus of this article. Those of you that have already done your homework will know that I am not the biggest fan of straight probation because it still results in a black mark on your record that remains with you forever. The good news is that, even if you are sentenced to straight probation, Texas law still gives you a chance at earning a clean record through a process called judicial clemency.

A criminal record, even for a misdemeanor, has a number of very serious consequences. In addition to the inherent difficulties of becoming employed, obtaining a security clearance, or getting a professional license after a criminal conviction (or even a deferred adjudication), a conviction can and will affect your rights. A theft conviction of any kind will bar you from most employment and from being able to sit on a jury. Any kind of domestic violence conviction, even a Class C misdemeanor, will result in the lifetime loss of your right to own a firearm (as will any felony conviction, regardless of the sentence imposed). Speaking of guns, you can forget about getting (or keeping) a license to carry a handgun in Texas if you are convicted of certain types of offenses (or even if you get deferred adjudication). Plus, I like helping people keep a clean record whenever possible because society is full of people who don’t know how to mind their own fucking business.

The judicial clemency statute is found in Article 42A.701(f) of the Texas Code of Criminal Procedure and reads as follows:

“If the judge discharges the defendant . . . the judge may set aside the verdict or permit the defendant to withdraw the defendant's plea. A judge acting under this subsection shall dismiss the accusation, complaint, information, or indictment against the defendant. A defendant who receives a discharge and dismissal under this subsection is released from all penalties and disabilities resulting from the offense of which the defendant has been convicted or to which the defendant has pleaded guilty . . .”

The use of the word “may” is operative in this statute: a judge is not required to grant judicial clemency, but is able to consider it. When considering an application for judicial clemency, a judge will typically consider the age of the defendant at the time of the offense, the prior criminal record of the defendant, the nature of the offense, the conduct of the defendant while on probation, and any recommendations from the probation officer, the prosecutor, or both. The benefits of an order granting judicial clemency are great: the defendant walks out of court no longer having been convicted of the offense in the eyes of the law.

There are, of course, some problems with the judicial clemency procedure. The most common problem is that lazy lawyers fail to inform their clients of the existence of the procedure. Although the issue has not been finally settled by the Texas Court of Criminal Appeals, all intermediate appellate courts in Texas have agreed that an order granting judicial clemency may not be granted more than 30 days after the date upon which the court enters its order discharging the defendant from probation. A judicial clemency order is typically issued in conjunction with an order granting early release from probation, so this is a procedure where it’s essential to hire an attorney that knows what he’s doing. If strict formalities are not observed, the right to petition the court for judicial clemency is often waived by the defendant.

As with early release from probation, the judicial clemency procedure is not available for the following offenses: (a) driving while intoxicated; (b) an offense requiring registration as a sex offender; and (c) very serious offenses that are listed by name in Art. 42A.054 of the Texas Code of Criminal Procedure. With the notable exception of the new “second chance” law for certain first offenses for driving while intoxicated, the only remedy available for those with such convictions is a gubernatorial pardon. Such pardons are exceptionally rare and are typically reserved only for the wealthy and politically connected. When making a decision about whether to enter a plea of guilty or no-contest to a criminal case, you should never do so with the hope that you might one day receive a full pardon.

The following is a list of guidelines that I give to every client that is sentenced to any kind of probation and who might, at some point, be eligible for judicial clemency:

(1) Pay your fines, court costs, and restitution as quickly as humanly possible. You should use a credit card and pay them all today if you are able to do so. Consider also paying all of your community supervision fees for the first one third of your sentence in advance. The most common reason for a motion to revoke probation is failure to pay these costs. Get receipts for all of your payments, keep them in a safe place, and provide me a copy so that I can put them in your client file.

(2) Follow all court orders to the letter and stay the hell out of trouble. Do not use drugs without a prescription. Avoid using alcohol while on probation, especially if you have been ordered not to. If you do get into trouble, call me immediately and do not answer any questions.

(3) Schedule any and all court ordered counseling and classes today and pay for them all in advance. Provide copies of all receipts for payment to me so I can put them in your client file. Also provide me a copy of any certificates of completion of these courses or counseling sessions for your client file.

(4) Report to your probation officer as scheduled every month. Show up dressed like you would dress for work. Be on time. If you need to cancel an appointment, make sure you have a good reason. Do it 24 hours in advance if possible and reschedule immediately.

(5) Get all of your community service out of the way as soon as possible. Provide me with copies of all hours completed (with signatures) so I can put it in your client file.

The following of these guidelines helps me to protect the client from any motions to revoke and track the client’s progress on probation (or deferred adjudication). I can then inform the client when it’s time to ask for early release, prepare a motion for both early release and judicial clemency, and get the thing on file and set for a hearing promptly. Of course, if the probation officer knows that I am being copied on everything given to them by the client, these guidelines have the added bonus of discouraging mischief by the probation officer (mistreatment is rare, but I have seen it happen).

Finally, keep in mind that your lawyer does not work for free. It is perfectly reasonable for your client to charge you an additional fee to argue a motion for early release and/or a motion for judicial clemency. My fee for such a motion is typically $1,500.00 for a misdemeanor and $3,000.00 for a felony. Since the procedure is discretionary, there are times when I am not successful in obtaining early release, judicial clemency, or both. There have been times where I have tried once, been unsuccessful, then gone back after another nine months of probation and achieved a very positive result. Those who are successful in obtaining judicial clemency commonly agree that it’s the best money they’ve ever spent: They haven’t just paid a lawyer to do any job in the world; they’ve gotten a second chance at life that will pay dividends until they die. Uhuru!

Jason L. Van Dyke is licensed to practice law in Texas, Colorado, Georgia and Washington D.C. He has been practicing in the areas of criminal defense, debt collection, and real estate law for ten years. He is a member of the Texas chapter of The Proud Boys and lives in Crossroads, Texas. The views expressed in this article are general in nature and should not be used or construed as legal advice for any specific situation